Courts rejected pleas by rape survivors to allow abortion beyond 20 weeks of pregnancy in nearly 20% of the cases — this was despite previous instances where judgments interpreted Medical Termination of Pregnancy (MTP) Act, 1971 such that the mental and physical trauma caused to a sexually assaulted woman was considered a grave threat to her life, according to a recent study.
Role of judiciary
A total of 194 cases that appeared between June 1, 2016 and April 30, 2019 before the Supreme Court and various High Courts, seeking permission to terminate a pregnancy, were examined as part of the study conducted by the NGO Pratigya-Campaign for Gender Equality and Safe Abortion. The study was released on Saturday. Its aim was to assess the role of the judiciary in access to safe abortion.
Of the cases studied, 21 had been adjudicated by the Supreme Court, and 173 were filed before different High Courts. Among these cases, a total of 97 were filed by or on behalf of rape survivors, out of which courts denied permission for termination in 19 (or 20%) of the cases.
The reasons cited for denying permission varied — pregnancies crossing the statutory 20 weeks threshold; abortion being unsafe for the survivor; and even rejecting the survivor’s plea that her pregnancy caused mental agony on grounds that she had not disclosed the incident of rape sooner, among others.
Section 3 of the MTP Act allows for aborting a foetus up to 20 weeks of pregnancy if there is a grave threat to a woman’s life or to her mental and physical health, or if there is a risk of the child being born with mental or physical abnormalities. But Section 5 states that if the termination of a pregnancy is “immediately necessary to save the life of the pregnant woman”, it may be allowed even after 20 weeks.
The study notes that “despite such cases falling squarely in the ambit of serious mental and physical trauma, survivors of rape are forced to approach the court for relief” on the basis of several judgments where courts have used a liberal interpretation of the law.
In a landmark judgment by the Bombay High Court in the Shaikh Ayesha Khatoon Vs. State, Section 5 was interpreted in the light of issues highlighted in Section 3, where the petitioner was allowed to terminate her foetus 27 weeks into the pregnancy due to abnormalities. The court’s judgment referred to mental health cited in Section 3 and personal liberty, by conflating these with Section 5 and implying that termination was necessary to save the petitioner’s life.
In as many as 75 cases before different High Courts, where medical termination of pregnancy was allowed, over half of the cases did not rely exclusively on the opinion of the Medical Boards appointed by the courts. Such cases viewed pregnancies that resulted from rape as falling within Section 5, and noted that because rape constituted a grave threat to the mental health of the survivor, not allowing the termination would be a threat to a woman’s life.The study highlights inconsistencies in reports submitted by Medical Boards.
“The agency needs to be with the woman. The assumption is that the decision of the Medical Board will be in her interest, but women perceive going ahead with the pregnancy and raising a child with special needs to be a lot more serious, and worth taking the risk of terminating it [the pregnancy],” said says Raunaq Chandrashekhar, who co-authored the study.